The report on Kenya’s Identity Ecosystem provides an overview of the main identification systems used to manage development, and an in-depth exploration of three that are vital to Kenyans’ participation in political and economic life. The report was researched and written by Emrys Schoemaker (Caribou Digital), Tom Kirk (London School of Economics) and Isaac Rutenberg (CIPIT).
The research for the report was funded by Australia’s Department for Foreign Affairs and Trade as part of their support to the Commonwealth Heads of Government Meeting to strengthen access to digital ID for women and girls.
Determining true risks and their impact to the user experience of Digital ID
Increasingly, with the introduction of DID programs in a number of African countries, citizens and residents have taken to social media to elaborate on some of their experiences of ID and interacting with ID systems. Albeit limited in scope and magnitude, these online reports of lived experiences provide a useful tool for assessing the impact of DID and identifying likely harms to which users may be exposed. Analysing social media narratives from 11 African countries, this report identifies, in descending order of gravity, three major categories of harms affecting users, as well as instances when the harms are most likely to manifest. These categorisations are proposed as a tool to assess the feasibility and proportionality of DID programs. Category One Harms are primarily associated with an inability to access foundational forms of ID. Category Two Harms on the other hand relate to users having the ID; its impact on constitutional rights, namely, the right to equality, privacy, and other human rights such as healthcare. The last category, Category Three Harms, deals with the harms occasioned by logistical/operational shortcomings such as clerical errors, long lines, etc. This report is guided by two main frameworks discussed below, the Principles for Evaluation set out by the Centre for Internet & Society (CIS) and the Omidyar Network’s Good ID principles.
REPORT ON ONLINE NARRATIVES
ON DIGITAL ID IN AFRICA
https://twitter.com/paulmobe/status/262458894427779072 In a recent article titled: "M-Pesa inventor plans to light low income homes" the Daily Nation reports that "The
Kipande, Kitambulisho, Huduma Namba: The Violent Ontologies and Epistemologies of National Identity Systems in Kenya.
In 2019, the Government of Kenya through the Ministry of the Interior announced a new initiative called the Huduma Namba; a centralised, ‘single source of truth’ database that would determine the extent to which citizens would be able to access key government services.
However, the Huduma Number is the latest incarnation of the idea that a centralised register of persons is necessary to effective governance. It is designed to take precedence over the existing ID (kitambulisho) system, which has its origins in the pre-independence registration of African males in Kenya. But despite its stated confidence in its own system, the government launched the Huduma Number under a cloud of threats and coercion. Citizens were given 30 days to register for the new system and informed that failure to register would deprive them of access to banking, passports, mobile money, and even while, for instance, provision was not made for those in the diaspora. Eventually, this move raised suspicion as to the legality of this mandatory enrolment.
This paper will retraces the politics and history such centralised databases in Kenya beginning with the introduction of the kipande in colonial Kenya in 1921, through to the creation of the kitambulisho system at independence, including enrolment of women in 1978 and the modern digital database, through to the Huduma Namba itself. This critical genealogy will emphasise the reasons why the various systems were created, the ways they were expected to operate, and the political challenges they raised, as well as the extent to which these challenges were addressed. In this way, the paper argues that the fundamental flaws in Kenya’s identity systems are political and not technological and that the introduction of a digital database without addressing the political context may compound more problems than it solves.
A Downloadable version of the policy recommendations below is here.
Beyond Technical Soundness: Making Room for Human Rights in Kenya’s Digital Identity Projects.
Policy Brief.
Developing countries around the world are turning to digital identity systems to address development challenges. But some development challenges cannot be resolved purely on technical terms. Where they are implemented without adequate consideration of the local social and historical context, the systems can cause significant harm that undermine any putative benefits. This policy brief focuses on Kenya’s digital identity project which has been plagued with dissent and confusion in part because it has not been sensitive to key human rights concerns. It provides a preliminary human rights framework to analyse Kenya’s Huduma Number.
The report is based on a 12-month desk study conducted at the Centre for Intellectual Property and Technology (CIPIT) at Strathmore University.1 In brief, the study found that the logic of ID systems in Kenya has always been premised in discrimination and structural violence which has neither been challenged nor addressed over the years. The Huduma Number is therefore being grafted on to a problematic basis and must be subjected to a thorough human rights assessment before it proceeds. Examples of this contextual basis include vetting for specific ethnic communities, politicisation of identity and coercion perpetrated by the Executive.
Aside from these conceptual flaws, the roll out of the Huduma Number has as well been problematic. A court held that the process was not mandatory due the absence of a Data Protection Act.2 This was not the first setback. Earlier, in 2007, a unique PIN generated at the direction of an Inter-Ministerial Task Force was to be integrated into the National ID – this did not occur. In 2009, a tender was awarded to OT Morpho to print the cards but this also did not come to pass due to a court challenge. The process was restarted in 2011 through the Kenya Citizens and Foreign Nationals Management Service Act and stalled in 2014. The process has also seen insufficient public participation. The Executive began the Huduma Number registration exercise in June 2018 on the basis of an Executive Order as opposed to an Act of Parliament, precluding public participation. The enabling Act was subsequently passed via the Statute Law (Miscellaneous Amendments) Act in December 2018, but there wasn’t much public participation in that process either. Throughout all this, the government policy was inconsistent. State officers and public officials gave conflicting accounts of the mandatory nature of the Huduma Number.3 The legal validity for the Huduma Number was also questioned by the Senate due to the failure of the National Assembly to consult it during parliamentary debate.
The Huduma Number also faced a number of human rights challenges. Notably, on 22nd March 2019, the Kenya Commission on Human Rights (KCHR) and the Nubian Rights Forum filed a petition to stop the Huduma Namba registration exercise citing that it violated the constitution. Despite a concluded court case, the broader human rights concerns of civil society remain unaddressed. These include: discrimination and exclusion; data protection; state surveillance; and a lack of transparency and public participation.
Conclusions: Technical soundness cannot compensate for human rights failures embedded in the logic of a digital identity system. The Huduma Namba project is not only technically unsound but contains significant human rights issues that must be addressed. A human rights analysis of a digital ID system must address questions of harm, privacy, balance of power, democratic participation, and suitability for local context.
Summarized Policy Recommendations
Recommendations for the Executive: Conduct meaningful nationwide, public engagement on the Huduma Namba, including translations into local languages to enable full participation; and address issues of discrimination and exclusion embedded in the logic of identity systems in Kenya, particularly on the unfair use of vetting against marginalised communities.
Recommendations for the Legislature: Suspend the provisions of the data protection law until an effective human rights review can be conducted with the oversight of the Senate and in partnership with human rights actors in the country. Review, revise, or eliminate “carve-outs” such as blanket exemptions from data protection provisions for public sector activities.
Recommendations for the Judiciary: Strengthen the capacity of the judiciary to understand and effectively litigate digital rights issues.
Recommendations for Human Rights Organisations: Strengthen the capacity of Kenya’s human rights community to respond to the changes in the digital rights landscape; Conduct meaningful research into alternative methods of improving service delivery that do not divert key government resources, perpetuate discrimination and exclusion, enhance the coercive reach of the state, and engender mass surveillance and criminalisation of the society; Lobby parliament for a human rights review of the Data Protection Act (2019) and demand amendments of clauses that do not conform to international standards on data protection; Increase public awareness on the importance of digital rights as human rights, and understanding the implications of building the state’s coercive and surveillance capacity; and Support public forums and debates on the impact of digital identities on daily life.
1 See generally, Nanjala Nyabola and Isaac Rutenberg (forthcoming) Kipande, Kitambulisho, Huduma Number: A Critical History of Identity Systems in Kenya (unpublished).
The Inclusiveness or Exclusiveness of National IDs in West Africa
The executive summary for the report:
The purpose of this project is to review the use of IDs in three (3) West African countries in
order to determine where the IDs have been used to include and or exclude individuals in getting
access to social services. In doing so, we reviewed relevant literature, laws and policies, grey
literature, primary and secondary accounts, and other materials on inclusive/exclusive uses of
IDs in the respective countries. The Consultant identified Cote D’Ivoire, Ghana and Nigeria for
purposes of the study. The countries have been selected to represent the diversity of legal
systems and governance structures within West Africa.
For each country, we have discussed two critical identity credentials/documents: the national
identification card (or the national identification number in some cases) and the national health
insurance card. The two cards are chosen to represent the foundational and functional
identification systems in the three countries, and also reflect the peculiar dimensions and
implications for inclusivity.
Overall, we find that in terms of laws and policies related to IDs, governments in the three (3)
countries generally have a pro-inclusivity disposition. Yet, there are also policies and laws in the
countries that undermine ID inclusivity and intend promote exclusivity. These exclusionary
factors of the six (6) IDs studied here are often heightened by administrative impediments to
access. Below are some of the major observations from the three (3) country’s case studies.
CIPIT researcher Grace Mutung’u was announced as the runner up in the Accountability category for the Good ID Awards. See the announcement here
Dr. Rutenberg:
Dr. Rutenberg is the Director of CIPIT and a senior lecturer at the Strathmore Law School.
He has a BS in Math/Computer Science, a BS in Chemistry, a PHD in Chemistry, and a JD in Law, all from universities in the United States.
Dr. Rutenberg is actively involved in guiding intellectual property and information technology policy and academic work in Kenya through his research activities, blogging, direct interaction with governments, and civil society interactions.
Dr. Melissa Omino:
Dr Omino holds an LLB (University Of Fort Hare), LLM (Stellenbosch University) and an LLD (University of Fort Hare). She is a member of the Kenyan Bar and practices law as a Partner in MJD Associates LLP in Nairobi, Kenya.
Melissa has a special interest in intellectual property. Her current focus is academic research in the niche area of pharmaceutical patents and international trade in relation to the phenomena of “evergreening”. Melissa is also co-founder of the IPCheckIn a monthly meeting of IP enthusiasts that includes patent examiners, attorneys, professors, musicians and law students who offer their services in IP awareness and knowledge dissemination pro bono in Kenya.
Angeline Wairegi, Ph.D.:
Angeline holds a BS in Chemistry (University of North Texas), MS in Food Science (Chapman University), and a Ph.D. in Physical Chemistry (Utah State University). She is an experienced educator and research scientist with a proven track record in effectively instructing large and small size classrooms in institutions of higher learning, designing educational and training programs for scholars in the scientific field, and in successfully managing and conducting complex research projects. She also has comprehensive technological and pedagogical knowledge on the best practices of designing educational programs, for both online and conventional classrooms, that cater to the educational needs of diverse student populations; as well as the strategies required for carrying out systematic, comprehensive, and successful research projects.
Caroline Wanjiru Muchiri:
Wanjiru is an advocate of the High Court of Kenya with 9 years post admission experience. She has practiced law in Kenya under various capacities with a bias on intellectual property law, corporate and commercial law.
She is working on the intersection of Intellectual Property Law, innovation, start-ups, tech hubs and technology with an aim of informing the policy making process in Kenya.
Wanjiru is passionate about agriculture and the law, women empowerment and intellectual property and its interface with the law. She is a convener, strategist, organizer and a participant of various IP forums in Nairobi and a two-time judge for IP and ICT Moot Court held at Strathmore Law School.
Grace Mutung’u:
Grace is an advocate of the High Court of Kenya.
Her research interests are on ICT policy in Kenya and Africa, with a specialization in digital rights, governance and development. She has been involved in ICT policy processes for over 10 years.
She has a Master of Arts in Contemporary Diplomacy from the University of Malta in 2016. She holds a Bachelor of Laws from the University of Nairobi and a post graduate diploma from Kenya School of Law. She also holds a higher diploma in Information Systems Management from Strathmore University.
Kendi Murithi:
Kendi holds a Bachelor of Commerce from Strathmore University in Finance and Business Administration, a CPA 5, and an MBA in Finance from USIU-Africa (2020).
She joined the team in 2014 overseeing all the administrative and finance functions of the Centre. Beyond CIPIT, she enjoys conversations on wealth creation, financial freedom and entrepreneurship.
Catriona Onyango:
Catriona is a CPA (K) and a holder of a Bachelor of Commerce Degree (Accounting Option) from the University of Nairobi.
Kevin Muchwat:
Kevin Muchwat is a holder of a Bachelor of Science (Physics) degree from South Eastern Kenya University. He is a full-stack developer experienced in developing desktop, mobile, and web applications. He worked with the Federation of Red Cross and Red Crescent Societies (IFRC) to implement Volunteer Management Systems in national societies across Africa and his strong knowledge and experience in programming and technology make him a perfect part of the team as the Tech Lead.
Mitchel Ondili:
Mitchel has an LLB from Strathmore Law School. She is passionate about the intersection of technology and existing inequalities.
Cynthia Nzuki:
Cynthia holds an LLB degree from the Strathmore Law School and is currently undertaking her Advocates Training Programme at the Kenya School of Law. Her interests lie in Intellectual Property Law and how proper securing of intellectual property rights can positively impact individuals and the society through the advancement and growth of the innovative and creative sectors; which in turn will lead to economic growth.
Mercy King’ori:
Mercy has an LLB from Strathmore University. Her interests are in the intersection of the law with technology. She has been actively involved in ICT related laws and policies and numerous other projects that look at the how ICTs interact with human right
Godana Galma:
Godana holds an LLB from Strathmore Law School and is currently undertaking the Advocates Training Program at the Kenya School of Law.
His research interests are on the impacts of policy on digital rights as well as the relation between IP protection and human development.
Prof Luis G. Franceschi:
Prof Luis G. Franceschi, LLB, LL.M, LL.D is Founding Dean of Strathmore University Law
School, which is today regarded as one of the most reputable and innovative law schools in
Africa. As a thinker, educator and writer, he loves positive and disruptive innovation. He is
currently engaged on the Courts of the Future initiative, where he has brought together
academia, practitioners, governments and judicial officers to transform the way justice
systems operate in Africa. He is the recipient of the 2018 Utumishi Bora National Award in
Research & Writing, the 2016 Australian Award and Visiting Fellowship at Griffith Law
School (Brisbane) and he has been appointed as Visiting Fellow of Mansfield College during
his visit to Oxford.
His area of expertise focuses on the convergence between Constitutional law and Public
International Law “the constitutional regulation of the foreign affairs power”. He is also a
legal advisor to several national and international government agencies, commissions and
programmes, including international and regional courts, the United Nations and the World
Bank. He sits on several boards: Transparency International (Kenya), the International
Justice Commission (The Hague), the African Prisons Project (London), the Africa Legal
Network (ALN) Academy (Mauritius), the International Association of Law Schools (New
York), among others.
His latest publications include “The Rule of Law, Human Rights and Judicial Control of
Power”, Springer; “Judicial Independence and Accountability in Light of judiciary Code of Conduct and Ethics of Kenya” ICJ Kenya; “The Cost of the Constitution in Kenya: A Cost
Analysis of the New Governance Framework Introduced by the 2010 Constitution of Kenya”,
Harvard Africa Policy Review; “The Constitution of Kenya; A Commentary” (a 900-page
article by article commentary of the Constitution), SUP (second edition); and “The African
Human Rights Judicial System; Streamlining Structures and Domestications Mechanisms
Viewed from the Foreign Affairs Power Perspective”. He is also a weekly columnist with the
Daily Nation Newspaper (Kenya). He has also conducted executive leadership courses for
CEOs in more than 25 countries. He is a Kenyan citizen and resides in Nairobi.
Angela Wasunna:
Angela Wasunna is Vice President, Emerging Markets Policy at Pfizer. In her role, she is responsible for leading the development and implementation of a coordinated approach to advance business-focused policy issues related to drug pricing, intellectual property, health systems, healthcare financing and regulatory reform in Emerging Markets. Previously Angela was Assistant General Counsel, Intellectual Property Policy in Pfizer’s Legal Division.
Angela received her law degree from the University of Nairobi Kenya, and advanced law degrees from McGill University, Canada and Harvard Law School. She is admitted to practice law in the State of New York and is an Advocate of the High Court of Kenya.
Before moving to Pfizer, Angela was Associate for International Programs at the Hastings Center for Bioethics, New York. At the Hastings Center, she managed projects on intellectual property rights, market mechanisms in health systems, and public health policy.
Angela has also served as consultant to several agencies including the World Health Organization, the Institute of Medicine (IOM), the Centers for Disease Control (CDC), the World Health Organization, the Bill and Melinda Gates Foundation, the World Bank and the Department for International Development, UK (DFID). Angela has published several peer-reviewed articles in academic journals, and lectured internationally.
She is co-author of the book: Medicine and the Market: Equity v Choice, Johns Hopkins University Press, 2006.
Marisella Ouma:
Marisella Ouma is a lawyer and an advocate of the High Court of Kenya, with expertise in Intellectual Property (IP) Law based in Nairobi, Kenya. She is currently the Head of Legal at the Central Bank of Kenya and has been a parttime/visiting lecturer at the University of Nairobi, Strathmore University and the Africa University. She is also an online tutor at the World Intellectual Property Organization (WIPO) Academy. She holds a PhD in Law from Queen Mary, University of London. She is a Member of the Law Society of Kenya and the Institute of Certified Secretaries in Kenya. She previously worked as the Deputy Solicitor General, Legal Advisory and Research, Office of the Attorney General and Department of Justice and was the founding Executive Director of the KECOBO. She has also served on the Board of the KIPI as well as the Board of the Anti-Counterfeit Agency (ACA).
Prof. Githu Muigai:
Professor Githu Muigai hold an LLB and a PhD from the University of Nairobi, an LLM from the Colombia University Law School and Diploma in law from the Kenya School of Law. He is a Fellow of the Chartered Institute of Arbitrators (FCIArb). He was called to the Bar in 1985. He specializes in public procurement law, corporate finance, civil and commercial litigation. In addition to the practice of Law, he is the immediate former Attorney General of the Republic of Kenya.
Florence Ogonjo:
Florence is an Advocate of the High Court of Kenya, with three years’ experience post admission.
Her interests are in the intersection of human rights with technology.
She is a social impact enthusiast and a member of Vitabu Vyetu Foundation.
Alberto J. Cerda Silva:
Alberto J. Cerda Silva is tenured assistant professor in law and technology at the University of Chile Law School. As a former Fulbright Commission scholar, he holds a doctoral degree from Georgetown University with a dissertation on human rights, copyright, and internet regulation in Latin America. Currently, he is program officer at the Ford Foundation’s International Technology and Society Program, from where he supports organizations advancing internet policies from a social justice and human rights viewpoint worldwide. E-mail: acerda@uchile.cl
Rachel Achieng’:
Rachel Achieng' is an Advocate of the High Court of Kenya. Her interests lie at the intersection of law and technology.
Amrit Labhuram:
Amrit is an LLB holder from Strathmore Law School. He is a prospective Data Protection Officer and awaiting admission to the 2021 Advocates Training Programme at the Kenya School of Law. His interests lie in Cybersecurity awareness and resilience from a legal and technical perspective and he is a data protection enthusiast.
Peacela Atim:
Peacela holds an LLB from Strathmore Law School. She is interested in Intellectual Property Law and the development of creativity and innovation through intellectual property rights. She also has a keen interest in Sports Law, particularly the intellectual property aspect of that field.
Milcah Kerubo:
Milcah Kerubo holds a Bachelor of Laws (LLB) degree from Strathmore University. She has a keen interest in digital rights particularly on data protection and privacy.
Margaret Zalo:
Margaret holds an LLB from Strathmore University. She has a great appreciation for computer science and information technology and is profoundly curious about related legal issues, especially those revolving around data protection and cybersecurity.
Joanna Kahumbu:
Joanna holds a Bachelor of Laws (LLB) degree, First Class Honours from Strathmore University Law School. She is interested in the TRIPS Agreement, Access to Medicine and IP, and International Trade and IP.
